State v. Lem Woon

¶1delivered the opinion of the court.

¶2Many of the assignments of error arise out of the fact that there is evidence tending to show that decedent, the two defendants, and most of the witnesses are Chinese, and are members of a Chinese society known as the “Bow On Tong”; that before the killing there was trouble in the Tong, which had divided it into two factions; and *486that decedent was blamed for this trouble. Most of the Chinese witnesses for the State and the decedent belonged to what is referred to as the new faction, and most of those for the defense belonged to the old faction, and there was evidence tending to show that the killing was the result of the trouble between the factions. The trial was conducted principally by Dan J. Malarkey, who appeared with the district attorney for the State.

¶31. The first assignment of error relates to the conduct of Mr. Malarkey in the cross-examination of Chin Lum, a witness for defendant, who belonged to the old faction of the Tong, lived in the same rooms with defendant, and testified for defendant upon his defense of an alibi. After some cross-examination as to what took place at those rooms, Mr. Malarkey asked: “Isn’t it a fact that is a place where you keep a lot of knives and pistols and guns to kill people with?” This was objected to, and the objection sustained. The question was repeated in a different form, and an objection again sustained, and a third time it was asked in another form, and objected to. The objection was at first overruled, and the witness answered:

“That place belong Bow On Tong, formerly Bow On Tong headquarters. Good many members come there to stay, and leave their things there. Don’t know who belonged, because former time Bow On Tong been there.”

¶4It appears that a box containing the weapons referred to in the question were on the clerk’s desk, and were about to be presented by counsel, when the court adjourned until morning and reserved final decision for further consideration. On reconvening court, the judge announced that he was not. clear as to the admissibility of this evidence, and that the defendant should have the benefit of the doubt, and excluded the evidence. Thereupon, at the request of Mr. Malarkey, the jury retired, and in their absence there was further controversy in *487relation to the question, and the weapons were offered in evidence, but not in the presence of the jury, when the court said:

“The introduction of the weapons under such circumstances might tend to prejudice the case of this defendant in the minds of the jury. Call the jury.”

¶5It is not necessary for us to determine the relevancy of the matter sought to be adduced by the question and offer, as the objections were sustained.

¶62. But the inquiry is whether asking the question, the presence of the box of weapons, and the statement were prejudicial and reversible error, without other ruling by the court or exception by defendant. The first reference to the trouble in the Bow On Tong was by the defense in the cross-examination of the State’s witnesses Lee Shu and Gow Ying Yuen. It was also mentioned by decedent in his dying declaration as testified to by Lee Hueng and E. W. Wilbur, and also by defendant in his direct examination, and this question was asked evidently on the theory that the trouble resulting in the shooting was a Tong fight, and we see nothing in the facts or conduct of counsel to indicate that the question was asked in bad faith or from an improper motive. The mere asking of the question was not reversible error. In this connection may be considered assignment of error No. 6, relating to the conduct of Mr. Malarkey in asking defendant’s witness Sam Ah Pye, “You and Won Jake Num have fixed up a good many Chinese jobs, haven’t you?” which, upon objection, was' withdrawn, and no ruling was asked or exception taken, and therefore no error was committed, although the asking of such a question should not be countenanced.

¶73. The second assignment of error relates to the scope of the cross-examination of Jo Bong, a witness for defendant, and the statements of Mr. Malarkey in rela*488tion thereto. His direct examination related only to what took place in his hearing at the hospital. Defendant’s counsel had previously brought out in cross-examination of the State’s witnesses and by defendant himself the facts disclosed as to the Bow On Tong, the division in it, and that the Chinese witnesses belonged to one faction or the other. It was evidently the purpose of the defendant to impress upon the jury that the killing of Lee Tai Hoy was the result of a feud in the Tong, one faction against the other, rather than a personal difficulty between the slayer and Lee Tai Hoy. This purpose is also disclosed by the effort of defendant to introduce the evidence of Mr. Lord and Sam Ah Pye as to the custom of the Chinese to seek revenge in such cases against any one in the opposing faction. Jo Ah Bong, as had had already been shown by the State’s evidence, was present when defendant and Yee Gueng were arrested in their rooms at the corner of Second and Oak streets, having the door to the rooms locked and barred, and refused to admit the officers, and, when they forced the door, they found Jo Bong and defendant Yee Gueng in the toilet and this defendant in the other room. And, after arresting Jo Bong and Yee Gueng, they discovered on the floor of the toilet a 41 Colt’s revolver loaded. Upon the cross-examination of Jo Bong, Mr. Malarkey asked: “Why didn’t you open the door when the officers knocked ?”

¶84. Counsel for defendant objected to this question on the ground that it was incompetent and not cross-examination, whereupon Malarkey remarked:

“Are you objecting to having this man who was down there tell what happened there? Can’t I show that you tried to seal this man’s lips who was there; that he was standing on guard at the door with a gun, preventing the police getting them; … and I have a right to show the interest of this witness in this case and show that this *489witness, whom you put upon the witness stand, and whom you fail to ask about what occurred at the time and place where he was present. I have a right to develop upon his cross-examination his interest in this defendant,” etc.

¶9Defendant’s counsel moved that “these remarks be stricken out with reference to murderers and everything else in this case, and the remarks about the man standing on guard at the door with a pistol.” The reference to “murderers and standing guard with a loaded revolver” was stricken out. The question objected to was proper cross-examination, as tending to show the interest of the witness, and the aid he was rendering defendant and the objectionable parts of Malar key’s remarks were stricken out. We find no prejudicial error in this assignment.

¶105. Thereafter the witness was cross-examined at length as to his conduct from the time he ate supper until the time of the arrest, about 8 o’clock, all of which was objected to as not cross-examination, and exceptions were saved. This examination tended to show his interest and may have had a bearing upon his credibility, and was within the State’s privilege of cross-examination. It is said in State v. Mah Jim, 13 Or. 235 (10 Pac. 306), that “in a criminal case any question which tends to show a feeling or bias of the witness against the accused is competent.” In State v. Olds, 18 Or. 440, 442 (22 Pac. 940, 941), it is said:

“The State had the right, on cross-examination, to ask the witness anything that would show his interest in the result of the trial, and anything he did in aid of the defendant about the trial fpr the purpose of enabling the jury to properly weigh his evidence, and to intelligently pass upon his credibility.”

¶11By Section 695, B. & C. Comp., the presumption that a witness speaks the truth may be overcome by evidence affecting his motives. Section 716, B. & C. Comp., provides that it is “within the discretion of the court to per*490mit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness.”

¶126. At the close of the testimony of Tichenor, the pistol, which was found on the toilet floor, was admitted in evidence over defendant’s objection, and this is assigned as error. The pistol does not appear to have been offered as in any way connected with the shooting of Lee Tai Hoy* but as incident to and connected with what transpired at the time the door was forced, and the defendants and Jo Bong arrested, and we find no error in admitting it. Also, this evidence and that relating to the Bow On Tong, the trouble in it, the fact that defendants and decedent, as well as the witnesses, were members of it, justify the instruction defining and limiting the purpose and effect of the evidence relating to the Bow On Tong, and was not an invasion of the province of the jury. Exceptions were also taken to questions asked defendant upon his cross-examination.

¶137. For the purpose of establishing an alibi, defendant on his own behalf testified that from 10 minutes past 6 o’clock P. M. on the day of the homicide he was not out of his rooms on Second and Oak streets until he was arrested about 8 o’clock P. M... He also testified at length as to what took place at the hospital when he was taken there by the officers immediately after the arrest for identification by the wounded man. The cross-examination related among other things to whether or not Jo Bong, whom he named as one who.had eaten supper there, had gone out of the rooms during the time referred to and how long he had been gone; also, as to his acquaintance with, and his identification of, Lee Tai Hoy and Lee Hueng, who were at the hospital, and as to whose statements he had testified on direct examination. To all of this cross-examination defendant objected on the ground *491that it was not cross-examination and made defendant a witness against himself. The State had a right to examine him as’to the circumstances bearing upon the alibi, both as to the fact of his presence in the rooms and anything that might bear upon the truthfulness of his statements in relation thereto, and the same is true as to his acquaintance with decedent and Lee Hueng, so far as it relates to his identification of them; also, in his direct examination, defendant testified that his name was Lum Suey, and not Lem Woon, and the same objection was made to the inquiry by the State as to his statement made upon his arraignment, that his name was correctly stated in the information and as to the proceedings at the preliminary examination where he was referred to only as Lem Woon. We think this was all strictly within the State’s right of cross-examination. It was germane to statements made in his direct examination upon these matters. Section 1400, B. & C. Comp., makes a defendant in a criminal action competent as a witness on his own behalf, and, when offering himself as a witness, he shall be deemed to have given the prosecution a right to cross-examination upon all the facts to which he has testified tending to his conviction or acquittal. The scope of such cross-examination is now settled by the case of State v. Bartmess, 33 Or. 110, 124 (54 Pac. 167, 171), where Mr. Justice Moore, speaking for the court, says:

“A fair construction of the statute in question leads us to conclude that defendant in a criminal action, having voluntarily testified in his own behalf, may be cross-examined in relation to all facts and matters germane to the testimony given by him on his examination in chief.”

¶14And in State v. Miller, 43 Or. 325, 330 (74 Pac. 658, 659), Mr. Justice Wolverton says:

“The statute, however, is not to receive an unduly restricted or narrow construction, and the cross-examination must extend the inquiry to facts and matters mani*492festly germane and relevant to the facts testified to in chief, tending to their explanation and elucidation, and in this respect may be as searching and broad as the foundation upon which it rests.”

¶15And the still more recent case of State v. Deal, 52 Or. 568 (98 Pac. 165), Mr. Chief Justice Bean, speaking of the cross-examination of a defendant, says:

“It must now be regarded as settled that it must be confined to matters properly germane to and connected with his testimony in chief. … In other words, a defendant cannot, under the guise of a cross-examination, be compelled, in violation of Section 11, Article I, of the Constitution of Oregon, to give evidence against himself, but, when he becomes a witness on his own behalf, he wáives this constitutional guaranty as to all matters properly connected with his examination in chief, and subjects himself to such cross-examination thereon as may tend to explain, elucidate, or affect the credibility of his testimony, and such cross-examination may be as vigorous, and searching as that of any other witness.”

¶16Thus, even if the cross-examination does make him a witness against himself, it is not objectionable on account thereof, provided it relates to matters properly connected with his examination in chief. No error was committed in permitting this cross-examination.

¶178. There was a conflict in the evidence as to what is the true name of defendant, but that was a question for the jury. Furthermore, the defendant was identified by several witnesses independent of the name. Lee Tai Hoy in his dying declaration pointed him out as his assailant; also, Chung Kim and Lee Shu and Gow Ying Yuen identified him as running from the house immediately after the shooting, and it was for the jury to determine the fact.

¶189. During the presentation of the State’s case, Malarkey called to the witness stand Jung Ah Poo, and, after he was sworn as a witness, Mr. Malarkey stated:

“That the testimony, if any, that this witness will give is in my judgment only hearsay testimony, and I only *493called him because of the fact that counsel for the defense has intimated that they want Jung Poo.”

¶19Counsel for the defense stated:

“We haven’t called him, and we never said we wanted him. We asked one witness where he was, where the man that gave him the information was, and he said he was gone.”

¶20Mr. Malarkey replied:

“No; he said he didn’t know. Now, here is Jung Poo. I do not offer him as having any personal knowledge of any facts, but, if you want Jung Poo, I do not want you to object when I call him, because you have practically made so much about Jung Poo I do not want any objection on the ground that it is hearsay evidence.”

¶21Mr. Logan replied:

“I desire that that be stricken out. This man is on trial for his life, and this is not to be the subject of by-play between counsel. I move to have it stricken out.”

¶22The Court:

“I suppose counsel has a right to make his statement when he produces the witness out of the abundance of caution.”

¶23Prior to this time Lem Ling, a witness for the State, testified that he had called the police and aided in pointing out to them the defendants, and that he had obtained his information as to who had done the shooting from Jung Poo, and, when cross-examined by defendant’s counsel in regard to Jung Poo, Mr. Freeman for the defense stated: '

“These men that incited the arrest appear to have disappeared.”

¶24Mr. Malarkey:

“Jung Ah Poo will be produced here if you want him.”

¶25Mr. Freeman:

“I was taking it from the testimony of the witness that he had disappeared. He didn’t seem to know where.”

¶26*494Mr. Malar key:

“This witness is not his guardian. We will put him on the witness stand if you want to hear him.”

¶27Mr. Freeman:

“Then we will find out all about this.”

¶28Thus it seems there was an understanding between counsel that the State was to produce the witness, and it may have been a proper precaution for the State to do so before the close of defendant’s testimony. Yet we cannot approve of the State’s method of doing this. It should not have sworn him as a witness before the close of its case with no intention of asking him any questions. But no ruling was made by the court or exception taken, and no error was committed.

¶2910. As to the seventh assignment of error, defendant states:

“The defendant will insist that it was error on the part of the court to allow the district attorney, a judicial officer of the court, to turn over the prosecution of this case to a special prosecutor, who was in no manner an officer of the court, but was employed by the friends of Lee Tai Hoy as a special prosecutor.”

¶30At the commencement of the trial, it is recited in the record that the State was represented by “Mr. John H. Stevenson and J. J. Fitzgerald, deputies to the district attorney of the Fourth Judicial District of the State of Oregon, and Mr. Dan J. Malarkey, special counsel for the State.” This is the only reference in the record to the matter. His right to appear was not questioned, nor is the character of his employment stated, and the question is raised here for the first time. Therefore it is not before us for decision.

¶3111. The defendant attempted to show the revengeful disposition of the Chinese people as a race, to the effect that “when a trouble breaks out between two classes, or *495factions of the same class, and one man is injured, he does not care particularly whether he gets the assailant or the person who particularly injured him, but is satisfied if he brings injury upon one or the other side or class or faction,” and for that purpose called two witnesses, Chas. F. Lord, a white man, and Sam Ah Pye, a Chinese. This was offered, as appears, in connection with and in aid of the other evidence tending to cast doubt upon the identity of the slayer of Lee Tai Hoy; the design thereby being to discredit the State’s witnesses. The evidence offered relates to Chinese customs or characteristics, and applies to the race, and not to the individual. But a rule that would admit evidence of such characteristics or customs of a class or a race to affect the credibility of an individual witness of that class or race cannot apply to the Chinese more than to the Negro, Indian, or any other people who practice them. This characteristic of the Chinese, if it does exist among them, is probably outclassed by family or neighborhood feuds existing to this day in certain localities in our own country, where wrongs of generations ago are still being avenged. To admit such evidence would be a dangerous precedent. Testimony should be received only under legal principles and rules of evidence. Section 722, B. & C. Comp., provides that “all persons, without exception (save certain persons who are incompetent) may be witnesses.” By Section 695:

“A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character or motives, or by contradictory evidence; and where the trial is by the jury, they are the exclusive judges of his credibility.”

¶32The court must determine the competency of the witness, but the jurors are the exclusive judges of his credibility and the weight to be given to his evidence. All persons who are competent to testify, regardless of age, *496religion, race or color, stand equal before the law under the presumption of this statute. Shelp v. United States, 81 Fed. 694 (26 C. C. A. 570.) And the circumstances or evidence to affect his credibility must relate to and affect the individual. Anything beyond this would not only be unreliable but dangerous. Wigmore, in his work on Evidence, after discussing at some length testimonial qualificatTons 'of witnesses, and comparing the relative credibility of witnesses, and the value of testimony of people of different races and color, says, at Section 516:

“Taking all these considerations together, it may be concluded that any judgment of condemnation for the testimony of aliens in general, or of particular races or peoples, is likely to be, in the first place, absolutely incorrect as not founded on facts; in the second place, relatively unjust, as assuming a superiority of honesty which can only be hypothetical; in the third place, unwise, as tending merely to perpetuate ill-feeling and misunderstanding; and, finally, unsound in principle, as excluding indiscriminately a mass of testimony which ought to be weighed and credited in each individual instance for what it may seem to be worth.”

¶33It is said in United States v. Lee Huen (D. C.) 118 Fed. 442, and indorsed by Wigmore at Section 936, that:

“If it affirmatively appears that a witness has a bias in favor of persons of his own nationality, in whose behalf he is testifying, or against the other party to the litigation, or a bias in favor of persons of his own nationality generally, or against those of another nationality, such fact may be used to discredit his testimony.”

¶34And the same rule should apply to a bias of the witness in favor of or against a family or faction to which the wrongdoer belongs, if the latter cannot be reached. But it certainly would be incompetent to -show the reputation or trait of character of a class or race of people as to matters that might discredit the race for the purpose of discrediting the testimony of an individual of that race. *497Each witness should stand or fall by his own character, motives, or customs, and not that of his race. In Shelp v. United States, 81 Fed. 694, 698 (26 C. C. A. 570, 574), the same principle was involved and the following instruction to the jury was approved:

“(1) It is a fact that Indians lie, and it is also a fact that white men lie, and some of the most civilized and cultured men are among the greatest liars. The evidence of Indian witnesses is entitled to as much credit and weight as the evidence of white men, and such credibility and weight are determined by the same rules of law. (2) In weighing the evidence of witnesses you have a right to consider their intelligence, their appearance upon the witness stand, their apparent candor and fairness in giving their testimony, or the want of such candor or fairness, their interest, if any, in the result of this trial, their opportunities of seeing and knowing the matters concerning which they testify, the probable or improbable nature of the story they tell, and from these things, together with all the facts and circumstances surrounding the case, as disclosed by the testimony, determine where the truth of this matter lies.”

¶35This is in accord with Sections 722, 695, B. & C. Comp., above quoted, that provide that “all persons without exception … may be witnesses,” and “a witness is presumed to speak the truth,” and specifying the methods by which a witness may be discredited. The credibility of a Chinese witness must be determined by the rules of law applicable to other witnesses. It is said in Woey Ho v. United States, 109 Fed. 888 (48 C. C. A. 705), in referring to the credibility of witnesses, that “all people, without regard to their race, color, creed or country … stand equal before the law.” In McDaniel v. Monroe, 63 S. C. 307 (41 S. E. 456), it is said: “The credibility of a witness is not to be tested by the color of the witness or by the race to which he belongs.” And by that test evidence that tends to cast discredit upon the race cannot be received to discredit an individual witness. It is said in *498Shelp v. United States, 81 Fed. 694, 698 (26 C. C. A. 570, 574) :

“The truth is that, in law, both classes stand upon the same plane. The weight and credibility of every witness is to be determined in the manner set forth in the clause marked ‘(2),’ (of the instruction above quoted), which contains a clear and correct statement as to the duty Of jurors in weighing the testimony of the witnesses whether they be white men or Indians/’

¶36The result of these discussions, upon this subject, is to the effect that matters by which it is sought to discredit a witness must be such as affect the individual witness. He must be heard and recognized in his individual capacity, and not condemned or discredited because of the race to which he belongs or by its customs or reputation. We find no error in excluding the evidence offered.

¶3712. Defendant also excepted to the court’s instruction as to the flight of defendant. There was some evidence tending to show that defendant ran from the place of the shooting immediately after the homicide, and soon, thereafter was barricaded in the rqoms where he was found and arrested after the officers had forced the door. The term “fleeing from justice,” as used in the United States statutes, is defined in United States v. O’Brian, 27 Fed. Cas. No. 15,908, as “to leave one’s home or residence or known place of abode within the district, or to conceal one’s self therein with intent in either case to avoid detection or punishment for some public offense against the United States.” In the case before us the court left it to the jury to determine whether defendant did flee on account of this homicide, and only charged them as to the effect of such flight, if found by them that he did flee, as bearing upon the probability of his guilt or innocence, and was not an invasion of the province of the jury, and was not error. We find no error in the manner of giving of the instruction asked by Mr. Malarkey, and no objection was taken to the law as stated in the instruction.

¶38*499Assignments of error 13, 14, and 15 relate to the trial of the defendant upon an information which was filed under Section 1258, B. & C. Comp. These questions were decided adversely to defendant’s contention in State v. Ju Nun, 53 Or. 1 (98 Pac. 513), to which we adhere.

¶39The judgment of the lower court is affirmed.

¶40Affirmed.

¶41Decided December 31, 1910.

¶42On Petition for Rehearing.

¶43[112 Pac. 427.]

¶44delivered the opinion of the court.

¶45dissenting.

¶46All the questions raised on this motion are fully discussed by Mr. Justice Eakin in the original opinion in this case, which is reported in 107 Pac. 974, and we shall adhere to the views therein expressed.

¶4713. Upon this motion counsel, however, lay particular stress upon the action of the court in admitting in evidence the pistol found by Officer Tichenor in the toilet at the time he arrested Yee Gueng and Jo Bong. Independent of the fact adverted to in the original opinion that the finding of the pistol was an incident of the arrest, and, therefore, admissible, we are of the opinion that upon well-known principles of law it was admissible on other grounds. The evidence of Lee Shu was direct and positive that he saw this defendant and Yee Gueng and another unknown Chinaman in the hall of the building of deceased, assaulting him, and that they each had pistols. Immediately after this, Gow Ying Yuen saw three Chinamen run out of the building, and recognized defendant and Yee Gueng as two of them. They were last seen by him going down Oak Street in the direction of the building in which they were afterwards arrested, *500and only a short distance therefrom. In about half an hour the officers arrived at the room where defendants were arrested, and were refused admission. When they finally succeeded in breaking down the door, they found Yee Gueng and Jo Bong concealed in a dark closet, a loaded pistol, which gave evidence of having been recently discharged, lying on the floor of the closet, and Lem Woon in a bunk in the adjoining room.

¶4814. Here is evidence tending to show three things: (1) That defendant was present at the scene of the shooting, in company with Yee Gueng, and that they and another Chinaman were engaged in a felonious assault, with firearms, on deceased. (2) That they fled together to the same building. (3) That a pistol which to all appearances had been recently discharged and reloaded was in the same closet where Yee Gueng had been concealed under circumstances which indicated to any reasonable mind that it was one of the pistols used by the conspirators in perpetrating the murder. Now it makes no difference which one of the three conspirators fired the fatal shot, if the evidence shows that all three were present, aiding and abetting therein. There is strong evidence tending to show that at least three or four bullets were shot from the pistol of Lem Woon, but several bullets are not accounted for, and not found, and the evidence of Tichenor is to the effect that the pistol found by him in the closet when he arrested Yee Gueng showed powder stains in the barrel, indicating its recent use. These circumstances show a criminal conspiracy between Yee Gueng, Lem Woon, and another Chinaman to murder the deceased. Nor does the admission of the pistol in evidence come within the rule that under most circumstances forbids the introduction of testimony as to acts or declarations of a conspirator after the termination of the conspiracy. The finding of the pistol and its con*501dition was neither an act nor a declaration. It was a fact indicating that when Yee Gueng was seen with defendant, armed and assaulting the deceased, he was doing so with intent to murder, and assisted in its perpetration; and this intent and the consequences of it are imputable to the defendant, who, as other evidence tends to show, was present, assisting in the commission of the crime. The pistol was no more an act or declaration of Yee Gueng than was the closet in which he was arrested. It was a mute, but forceful, witness, corroborating the testimony of Lee Shu that the defendant and Yee Gueng were armed at the scene of the shooting. It further tended to show that the purpose of their being there was homicidal, and, in some degree, that it had been used for the purposes of the murder.

¶49It is significant ¿hat the defendant and Yee Gueng were never so far as the testimony discloses twenty feet apart from the time the' homicide was committed until they were arrested. They were seen together armed at the scene of the shooting; they were seen running away together from the scene of the crime; and they were arrested in the same building, a very short time after-wards, in rooms in close proximity to each other.

¶50In a somewhat extended experience in criminal trials, the writer has never seen a case of murder in the first degree more clearly and conclusively proved, and to seek now some mere pretext to set aside a verdict obtained after a fair and impartial trial would be to encourage crime and make a mockery of the law.

¶51The petition is denied.

¶52Affirmed : Rehearing Denied.